Addressing union organizing in the workplace has bedeviled employers since the adoption of the National Labor Relations Act. The National Labor Relations Board has historically permitted employers to ban employees from soliciting co-workers during working time. No solicitation policies have been narrowed and refined over the years, as demonstrated by the Board’s holding in Essex International, Inc., 211 N.L.R.B. 749 (1974). Essex distinguished between policies that prohibit solicitation during “working time” (permissible) and those that prohibit solicitation during “working hours” (invalid).

In Wynn Las Vegas, LLC, 369 NLRB No. 91 issued last week, the NLRB broadened the definition of solicitation to include urging a co-worker to vote “yes.” The Wynn Las Vegas decision reverted to the Board’s traditional interpretation and acknowledged the NLRB’s failure to obtain court approval for its narrower meaning.

Case Background

In Wynn Las Vegas, the Board concluded that the typical employer ban on solicitation included requesting a co-worker to vote “yes” for union representation in an NLRB election. Consequently, an employer can lawfully discipline employees for encouraging co-workers to vote for or against union representation while either employee is on working time.

The case arose when a union-represented employee who was off duty and leaving the casino stopped to talk to a security officer stationed at the entrance to the casino. The off-duty employee spoke to one of the security guards at the gate for approximately three minutes, and encouraged him to vote for union representation. A fellow security officer reported the incident, and an investigation ensued. The off-duty employee received a first written warning for violating the employer’s no-solicitation policy.

A complaint issued in October 2015 alleging the discipline and the employer’s investigation violated the National Labor Relations Act. Administrative Law Judge Gerald Etchingham dismissed the allegations in September 2016, and the General Counsel appealed to the Board.

The Board determined that two prior decisions, Walmart (2003) and ConAgra Foods (2014), wrongly adopted an overly narrow view of solicitation. Both decisions defined solicitation to require the actual presentation of a union authorization card during the conversation between the co-workers. As the Wynn Las Vegas decision noted, the Court of Appeals had rejected that narrow definition of solicitation.

Bowing to the Court of Appeals, noting the standard dictionary definition of solicitation was not so rigid and narrow, and recognizing that its historical definition of solicitation had not required the presence of an authorization card, the Board overruled that portion of Walmart and ConAgra. Henceforth, solicitation includes the encouragement of a co-worker to vote for or against union representation. Additionally, the NLRB ruled that the duration of the conversation was not to be considered.

Action Items

Employers should review their no-distribution policies and training materials in light of the decision. Be mindful that no solicitation rules must be enforced evenhandedly as to all solicitation occurring during employees’ working time.

For more, please contact your Baker McKenzie employment attorney.